https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8424

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYANDARUA** **CIVIL CASE NO. E003 OF 2026** **BETWEEN** **FRANCIS MUGWE GIKURI………………………………. APPELLANT/APPLICANT** **VERSUS** **ANN WANJIKU KARANJA & JOSEPH NJAGI NYAGA** **(Suing as the legal representatives of the estate of James Mugendi Njagi (deceased)…………………………………………………………………...RESPONDENTS** **RULING** 1. The appellant/applicant herein moved the court by way of a Notice of Motion dated the 25th of March 2026. The application was brought under sections 1A, 1B and 3A of the Civil Procedure Act, Order 42 Rules 6, and Order 51 of the Civil Procedure Rules. He is seeking the following orders: 2. This application be certified urgent and heard ex parte in the first instance. [Spent] 3. That there be a stay of execution of the judgment and decree of the Senior Principal Magistrate’s Court at Olkalou Civil Suit E123 of 2024, together with all consequential orders, pending the hearing and determination of this application. 4. That there be a stay of execution of the judgment and decree of the Senior Principal Magistrate’s Court at Ol Kalou Civil Suit E123 of 2024 pending hearing and determination of this appeal. 5. That the costs of this application abide by the outcome of the appeal. | | | | --- | --- | | | | 1. The application was premised on the following grounds: 2. That the appellant was the defendant in Ol Kalou Civil Suit E123 of 2024, which suit was determined in favour of the plaintiffs/Respondents. 3. The appellant, being dissatisfied with the said judgment, has appealed vide a memorandum of appeal dated 21st February, 2026, raising serious and arguable grounds with high chances of success. 4. The appellant stands to suffer irreparable and substantial loss if the execution process is not halted, and the appeal is rendered nugatory if the stay of execution is not granted. 5. The respondents will not suffer prejudice if the orders sought herein are granted, as the applicant is willing to provide security or abide by such reasonable conditions as the honourable court may deem fit. 6. The application was opposed by the respondents on the following grounds: 7. That the Notice of Motion lacks merit, is an abuse of the court process. 8. That the appeal filed herein does not raise any triable issue and is only meant to defeat and or delay the fruits of successful litigation. 9. The respondent is suffering and constrained financially and prays that the court order that 50% of the award be paid, and or in the alternative the entire decretal amount plus costs be deposited in an interest-earning Bank account in the joint names of both counsels till further Court Orders. 10. The Notice of Motion be dismissed with costs. 11. It is well-established law that an appeal does not automatically stay execution. Order 42 Rule 6 of the Civil Procedure Rules states clearly: 12. ***No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the Court Appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.*** 13. In the case of **RWW vs EKW [2019] eKLR**, the court, while addressing its mind to the purpose of a stay of execution order pending appeal, stated: ***The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded, and the appeal, if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.*** 1. To request a stay of execution for a monetary decree, the applicant is required to provide security. In this case, no proposal was submitted by the applicant. Although Mr Ojare informed the court on the 19th day of May 2026 that they had filed their submissions, this was not the case. In the interest of justice, a stay of execution is granted until the appeal is resolved, on the condition that the applicant pays 50% of the decretal amount to the respondent and the balance thereof to be deposited into a joint interest-earning account in the names of the respondents' advocate and the applicant’s advocates on record within 30 days of this ruling. If the applicant does not comply, the respondents may proceed with execution. 2. Costs will abide with the outcome of the appeal. **Delivered and signed at Nyandarua, this 16th day of June 2026.** **KIARIE WAWERU KIARIE** **JUDGE**